The New Mexican

Judge: LANL Employee was Retaliated Against

Worker acted within his rights by going to media, watchdog group with safety concerns, according to ruling

By BARBARA FERRY
Friday July 2, 1999

A judge has upheld the claim of a Los Alamos National Laboratory employee that he was retaliated against for tattling to the press and a watchdog group about problems with the lab's monitoring of radioactive emissions. Department of Labor, administrative law Judge David W. DiNardi found that Joe Gutierrez, an assessor who conducts internal reviews of lab operations, acted within his constitutional rights when he told local newspapers and Concerned Citizens for Nuclear Safety, a Santa Fe based watchdog group, about inadequate monitoring of stacks at LANL.

DiNardi ordered LANL to strike negative comments from Gutierrez's personnel record, to pay him $15,000 for emotional distress as well as a retroactive salary increase and to cover his attorney fees. The ruling might allow lab employees to talk more freely with the media, community groups and Congress, said Gutierrez's lawyer Carol Oppenheimer.

"It's an important precedent," said Oppenheimer. "Although other cases have held that employees have the right to go to the press, this decision is very clear that they also have the right to go to community organizations if it is their intention to raise serious concerns about health and safety."

LANL spokeswoman James Rickman said the lab has filed an appeal to the Labor Department's administrative review board but has not decided whether to pursue the case. "The dollar amount of the award was small enough that we re still trying to decide what to do," Rickman said. However, Rickman said the lab is worried that the case could have "a chilling effect on the lab's ability to conduct audits. Managers might not be forth-coming ii they fear that the information they give to auditors might end up in the newspaper, he said.

"It could have an effect on whether people are going to trust that auditor and provide candid, complete information," Rickman said. "It's an important enough principle that we may appeal."

During a hearing on the case in January, a lawyer for LANL argued that Gutierrez betrayed the trust of department managers by making "sweeping, unsupported statements" about LANL to the media. At that hearing, several lab managers had asked not to have their work reviewed by Gutierrez. One manager remarked that "airing of the laboratory's dirty laundry in public was unacceptable." However, Gutierrez said that he tried for years to get lab officials to pay attention to his concerns about safety, health and security. "I alerted management, but they turned a deaf ear," Gutierrez said. "I tried to do it within the system and the system didn't work."

In this case, Gutierrez says he became angry in July 1996 when LANL issued a news release claiming the lab was in full compliance with the Clean Air Act, which Gutierrez said he knew wasn't true.

In October 1996, he gave a statement to the CCNS, the watchdog group, and to The New Mexican citing missing air emissions records, inadequately trained personnel, possibly faulty methods of determining emissions and a defect in a concrete wall at the lab's plutonium facility that could allow plutonium gases to escape. CCNS had sued the lab over violations of the Clean Air Act.

In January 1997, the Department of Energy agreed to pay up to $700,000 for an independent review of its emissions-monitoring program. A lab policy prohibits employees from granting interviews to reporters without prior permission from the lab's public affairs office. And on Friday, LANL director John Browne sent a memo to all lab employees reminding them that contacts with members of Congress about the lab must be approved by the LANL govern-mental relations office.

The memo states that while employees have the right to con-tact members of Congress on personal matters, "all interactions with the Congress on matters that directly affect the Laboratory and its programs must be carefully considered and coordinated through our Governmental Relations Office."

Gutierrez and several other LANL employees think both policies are illegal, especially in light of DiNardi's decision.

The judge labeled Gutierrez's contacts with both the press, the watchdog group and members of Congress, all "protected activities" and says that his right to do so takes precedence over the lab's own administrative policies.

"Going to Congress is many times the only real outlet we have," Gutierrez said. "It's a right we have and a right we want to preserve." But Karl Braithwaite, director of governmental relations at the lab, said the recent memo from Browne "was not intended to conflict with the whistleblower statute."

"Heck no. We can't do that. It's a memo; by definition, it can't override federal statute," Braithwaite said. Braithwaite said the policy is intended to prevent scientists from getting crosswise with the University of California's con-tract with Department of Energy, which prohibits lab employees from lobbying Congress.

"Since the spread of e-mail, we see a lot of memos from university professors saying, 'They're going to cut our program; write your member of Congress,'" Braithwaite said. "Well, LANL employees can't do that." Braithwaite said he intends to meet with Browne after the two return from vacation to figure out if the policy memo should be clarified. "It's been sent out in the past and nobody has misunderstood it, but things are a little different now," he said.